THOMAS v. STATE.

(Court of Appeals of Alabama. Dec. 16, 1913.)

1. Criminal Law--Misnomer--Plea.
A plea that accused's "name is not Arthur Thomas, alias Buddie, as charged in the affidavit, nor has he ever been known or called by such name, as charged, but that his true name is Buddie Thomas, and is called by the alias name of Arthur Thomas," does not negative the fact that accused was named and called by the name of Arthur Thomas, which was employed in the affidavit and indictment.

2. Weapons--Concealed Weapons--Prosecution.
In a prosecution for carrying concealed weapons, evidence held sufficient to warrant a finding that accused had a pistol concealed about his person.

3. Weapons--Carrying Concealed Weapons--Offense--"Carry."
In a prosecution for the offense of carrying concealed weapons contrary to Act 1909, p. 258, it is no defense that accused, after concealing the weapon about his person, had not moved from the spot so as to transport the weapon; the word "carry" being used in the sense of to have concealed about the person, so that locomotion of the body would carry the weapon as concealed.

Arthur Thomas was convicted of carrying concealed weapons, and he appeals. Affirmed.

Omitting the formal part, the plea is as follows: "Says that his name is not Arthur Thomas, alias Buddie, as charged in the affidavit, nor has he ever been known or called by such name, as charged, but that his true and correct name is Buddie Thomas, and is called by the alias name of Arthur Thomas."

McArthur & Howard, of Birmingham, for appellant. R. C. Brickell, Atty. Gen., and W. L. Maetin, Asst. Atty. Gen., for the State.

PELHAM, J. The defendant's plea of misnomer not only did not negative the fact that the defendant was known and called by the name Arthur Thomas, which was the name employed in the indictment to designate the defendant, but in effect admitted that the defendant was known and called by that name. Demurrers to this plea were properly sustained. Freeman v. Pullen, 119 Ala. 235, 24 South. 57; Wren v. State, 70 Ala. 1; Ruffin v. State, 124 Ala. 91, 27 South. 307; Robinson v. State, 62 South. 372.

The case was tried before the court without a jury, and it is insisted that the evidence was not sufficient to support the finding of guilty. The defendant was charged with carrying a concealed weapon. One of the witnesses, a policeman of the city of Birmingham, who arrested the defendant, testified that the defendant "put the pistol in his pocket, and I ran my hand in his hip pocket and got it; it was not visible." The testimony of the officer that the pistol was in the defendant's hip pocket, and not visible when so placed, was sufficient, if believed (and that was a matter for the court, sitting as judge and jury), upon which to predicate a finding that the pistol was hidden from ordinary observation. It was open to the defendant (p.193)to cross-examine this witness, and further develop the facts as to the nature and extent of the concealment of the pistol while in the hip pocket of the defendant, as testified to by the witness, if there was any question as to the pistol's being concealed from ordinary observation at the time; and, in the absence of any attempt to bring out facts of that nature, the testimony of the witness that the pistol was not visible when he reached his hand into the defendant's pocket, and drew it out, is amply sufficient, we think, to show that it was concealed from ordinary observation.

It was proven on the trial without conflict in the evidence that, from the time the defendant placed the pistol in his pocket until it was taken out by the arresting officer, the defendant had not walked even so much as a step, but had been standing still, and it is argued that the undisputed proof shows that the pistol was not carried on the person as prohibited by law and as charged in the information against the defendant; that "carry" necessarily means and embodies the act of locomotion. This argument is fallacious, and might properly be said to have carried, or had, no weight with the trial court. The word "carries" or the words "to carry," as used in the statutes defining the offense (Code, § 6421; Acts 1909, p. 258), are used in the sense of to have concealed about the person, or to bear concealed about the person; and it is necessary to a conviction of this offense only that the concealed weapon be so connected with the person that the locomotion of the body would carry with it the weapon as concealed. Ladd v. State, 92 Ala. 58, 61, 9 South. 401; Cunningham v. State, 76 Ala. 88. The evidence is sufficient to support the judgment of conviction.